Caprice Assoc. v Martel

[*1] Caprice Assoc. v Martel 2023 NY Slip Op 51079(U) Decided on September 26, 2023 Supreme Court, New York County Lebovits, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 26, 2023
Supreme Court, New York County

Caprice Associates, Plaintiff,

against

George Martel, Defendant.



Index No. 652381/2023



Gary J. Wachtel, Esq., New York, NY, for plaintiff.

No appearance for defendant.
Gerald Lebovits, J.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 were read on this motion for DEFAULT JUDGMENT.

In this action, plaintiff, Caprice Associates, has sued defendant, George Martel, for damages consisting of (i) rent allegedly owed by Martel under a residential lease between them; (ii) legal fees incurred by plaintiff in bringing a related Housing Court nonpayment eviction proceeding; and (iii) legal fees incurred by plaintiff in this action. Plaintiff now moves without opposition under CPLR 3215 for default judgment against Martel. The motion is granted in part and denied in part.

Plaintiff has established proper service on Martel (see NYSCEF No. 2); and he has not appeared in this action. With respect to plaintiff's claim for $120,975.02 in unpaid rent, plaintiff has sufficiently proven the facts constituting that claim for default-judgment purposes through the affidavit of its managing partner and the documents attached to the affidavit, including copies of the lease and renewal lease, and a rent ledger. (See NYSCEF No. 5 [affidavit]; NYSCEF No. 8 [leases]; NYSCEF No. 11 [rent ledger].)

In addition to unpaid rent, plaintiff seeks an award of attorney fees incurred in this action and in the related Housing Court proceeding. This court agrees with plaintiff that article 20 of the lease permits plaintiff to recover fees. (See NYSCEF No. 8 at 8.)

Plaintiff's claim for fees from the Housing Court proceeding would ordinarily be [*2]foreclosed by the bar on claim-splitting. Under that doctrine, which a party must seek "attorneys' fees within the action in which they were incurred, not a subsequent action."[FN1] (O'Connell v 1205-15 First Ave. Assoc., LLC, 28 AD3d 233, 234 [1st Dept 2006].)

This action, however, comes within an exception to that bar. The Housing Court proceeding, brought in 2022, "relat[ed] to a residential dwelling or housing accommodation." (Real Property Actions and Proceedings Law [RPAPL] 702 [1].) As a result, plaintiff was statutorily barred from seeking any "fees, charges or penalties other than rent" in that proceeding, notwithstanding the language of the lease. (Id.)

The bar on claim-splitting is an aspect of the doctrine of claim preclusion. (See Sannon-Stamm Assoc., Inc. v Keefe, Bruyette & Woods, Inc., 68 AD3d 678, 678 [1st Dept 2009], citing Stoner v Culligan, Inc., 32 AD2d 170, 171-172 [3d Dept 1969].) And no claim-preclusion bar applies "where the remedy that the plaintiff seeks in the subsequent proceeding was unavailable to the litigant in the prior proceeding." (Matter of Singh v New York State Div. of Human Rights, 186 AD3d 1694, 1694 [2d Dept 2020], citing 172 Van Duzer Realty Corp. v Globe Alumni Student Assistance Assn., Inc., 24 NY3d 528, 534 [2014].) Because plaintiff could not have obtained an award of attorney fees in the Housing Court nonpayment proceeding itself, plaintiff may now seek here the attorney fees incurred in that proceeding.[FN2]

Plaintiff claims entitlement to $11,026.78 in attorney fees incurred in the Housing Court proceeding. (See NYSCEF No. 5 at ¶ 11.) But plaintiff neither explains nor justifies that figure, for example through the submission of time records or invoices. Plaintiff thus has not proven the facts constituting its claim for attorney fees incurred in the other proceeding. Plaintiff may still do so, however, through a motion on notice supported by appropriate documentation.

With respect to plaintiff's claim for attorney fees incurred in this action, plaintiff does not claim a specific amount in fees. Instead, it asks the court to "set[] this matter down for an inquest for reasonable attorneys' fees," as claimed in plaintiff's second cause of action. (Id. at 5.) Plaintiff may establish on papers the amount of its reasonable attorney fees incurred in this action, rather than through an inquest.

Accordingly, it is

ORDERED that the branch of plaintiff's motion seeking default judgment with respect to unpaid rent (excluding attorney fees) is granted, and plaintiff is awarded a judgment against defendant for $120,975.02, with interest running from April 1, 2023; and it is further

ORDERED that the branches of plaintiff's motion seeking default judgment with respect to attorney fees incurred in the related Housing Court proceeding, and attorney fees incurred in this action, are granted only to the extent that plaintiff may seek an award of those two increments of attorney fees through a motion on notice, supported by appropriate documentation, [*3]and otherwise denied;

ORDERED that upon this court's determination of any motion by plaintiff for the award of attorney fees, plaintiff may enter a supplemental judgment for the amount that this court determines to be plaintiff's reasonable attorney fees; and it is further

ORDERED that plaintiff shall serve a copy of this order with notice of its entry on defendant by certified mail, return receipt requested, directed to defendant's last-known address; and on the office of the County Clerk, which shall enter judgment accordingly.

Dated: September 26, 2023

Hon. Gerald Lebovits

J.S.C. Footnotes

Footnote 1:The Housing Court proceeding was litigated to a final judgment of possession. (See Caprice Assocs. v Martel, Index No. LT-3084549-22, NYSCEF No. 13 [judgment].)

Footnote 2:This action is materially different from 61 W. 62 Owners Corp. v Pastena (2023 NY Slip Op 50008[U], at *2 [Sup Ct, NY County Jan. 3, 2023]), in which the undersigned held that landlord's attorney-fee claim was partially barred by the claim-splitting doctrine. In Pastena, the prior action was a plenary action brought by tenant against landlord, not a Housing Court summary proceeding brought by landlord against tenant. (See id. at *1.) In any event, that action had been brought in 2014, years before the enactment of the current version of RPAPL 702. (Id.)